The law firm where you work has just
signed on a new client. The case involves client injuries, and
consequently will entail obtaining and analyzing medical records. What
does a nonmedically trained paralegal or legal assistant do?

Some common questions about medical
records that might cross your mind are: Where are they, how do I get
them, and what do I do with them once I have them? This article will
help demystify the process of gleaning medical information from the
records, and help paralegals move the case forward.

What records do
you need?

To decide what medical records to request, you must first
identify all the healthcare providers your client has seen. It’s best to
have a detailed form for each client to fill out, listing all physicians
seen, the dates, the complaint, the treatment, tests, medications and
the outcome of the treatment. The form should be detailed enough to
include all contact information for each provider listed — names,
addresses and phone numbers. It’s essential the client fill out the form
thoroughly and completely. This will help you identify which records you
must obtain, and which ones you might forego. Keep in mind, the more
information you gather in the beginning, the easier it will be to answer
questions that come up later.

Once the medical history review is
complete, go through it in detail. Medical records are expensive to
obtain so you don’t want to spend money on unnecessary records. On the
other hand, you must be very careful to include all records that might
relate to the current case.

For example, if the client was injured
in an accident and is complaining of chronic back pain, you probably
would not need the records of visits for colds, flu or ingrown toenails.
But you would want to review all records related to previous accidents,
and all records regarding treatment of prior back, neck and leg pain.
Or, if the case involves birth injury, you might forego the records from
an accident occurring 10 years prior, but you would want all records
related to the pregnancy, and perhaps records from prior pregnancies.

It’s best to be overly inclusive when
choosing which records to obtain. It’s better to end up with records you
don’t need than neglecting to obtain records containing pertinent data.
This is a mistake many attorneys make. It’s good to be frugal, but there
are associated risks with making costs the priority.

When requesting records, be sure to
request all records in the provider’s possession. When you receive
records, carefully compare them to the medical history provided by the
client. Don’t assume you have received all the records, especially from
hospitals. Even if the records are accompanied by a notarized affidavit,
the affidavit generally attests to the fact the records are authentic
copies, not that they are a complete set.

Where do you
obtain the records?

Each medical service provider is obligated to provide
records. It’s wise to call the provider if you don’t know the proper
procedure for requesting records. If you follow their directives, you
will find your request might be honored more quickly.

By calling, you also will find out which
records are not available through a particular provider. For instance, a
call to the outpatient clinic might lead to information that the
physical therapy records are not in the clinic department but in the
physical therapy department. You might also learn that electrocardiogram
or electronic fetal heart monitor tracings are kept separate from the
rest of the chart and must be requested separately.

In some situations, the records might be
accessible directly through the physician’s office. However, now it’s
common practice for physicians’ medical practices to be owned by a
healthcare system or a hospital. In this case, you might need to request
the needed records from a central records location of the corporation
with whom the doctor is affiliated.

How do you get
the records?

Healthcare providers are required to maintain the patient’s
confidentiality, and are prohibited from releasing personal health
information without proper authorization. To gain copies of your
client’s records, you will need a very thorough form completed by the
client authorizing the healthcare provider to release information to
you.

The process of medical record
procurement became more complicated with the enactment of the Health
Insurance Portability and Account-ability Act in 2003. Much confusion
still exists about what, when and how medical information safely can be
released by healthcare providers. This confusion has resulted in
healthcare providers being more reluctant to release information for
fear of violating HIPAA.

Authorizations to release medical
information must be HIPAA-compliant. Most large healthcare providers,
such as hospitals, now use new authorization forms that meet HIPAA
requirements. Many healthcare providers are reluctant to honor any but
their own forms. If you are required by a healthcare provider to use
their form, be sure to have the attorneys in your firm evaluate it
thoroughly. You must be sure it will give you access to all of the
records you are seeking.

The HIPAA requirements are complex, and
often result in more questions than answers. There are numerous helpful
resources available, including
www.hhs.gov,
www.hipaa.org and
www.hhs.gov/hipaa,
just to name a few.

You should have your client sign several
authorization forms during that first meeting. Be sure you have more
signed forms than you have healthcare providers on the client’s list
because you might find out about additional providers from whom you also
will need records.

It’s also a good idea to state in your
authorization that a photocopy of the signed form is acceptable in case
you run out of signed forms, so you don’t have to call the client into
your office to sign additional forms at a later date.

Minors and incompetent clients can’t
legally consent to release their medical information. Consequently, you
will need to obtain the authorization of the parent or legal guardian in
these types of cases.

In addition, state law will dictate who
is specifically authorized to sign for those types of clients. Be sure
to check for state-specific directives in the consent laws of your
state.

When do you get
the records?

You should request the medical records as soon as the
attorney has decided he or she is interested in having the case
reviewed. This process can take quite a long time since you might be
requesting the medical records from numerous hospitals, as well as
physicians.

You should discuss with your attorney
when you should secure the medical and hospital bills, as well as
pharmacy bills and prescriptions. These records help to calculate the
damages in the case. In addition, it’s advisable to obtain records from
third-party payors because occasionally you will find the client might
have forgotten that he or she has been treated by certain additional
healthcare providers. This gives you the opportunity to request
additional medical records, and assures a more complete analysis of the
case.

You will experience a wide range of
responsiveness among medical providers when requesting records. Some
medical providers will forward records right away, but others will not.
You might need to send several requests before you actually get the
records you need. The entire process can take months, and you must keep
this timeline under consideration.

What do you do
with the records when you receive them?

As soon as you receive a complete set of the medical records,
you should sort and organize them. Check with your attorney for his or
her preference. Some attorneys like to use a three-ring binder, while
some prefer not to hole punch the records.

Include subsections, which should be
tabbed and marked. Examples of these subsections are “Progress Notes,”
“Intake and Output,” “Laboratory,” “Radiographic” and so on. Once this
is complete, you should make an index of all major sections along with
their subsections. This will ultimately save time and maintain
organization of the records.

Next, you must determine if you have
received a complete set of medical records. A chart similar to the
example at the bottom of the page helps to keep track of which documents have been
received.

There are several ways to number or
Bates stamp the medical records. This can be done manually, or you can
use a software program for numbering the pages. This process will enable
the attorney and expert witnesses to refer to specific page numbers
within the medical record.

Once you have the entire record
organized, it’s advisable to make working copies for yourself and your
attorney. Keep the original intact for later use should the case go to
trial. Remember, there is more than one method for organizing medical
records.

How do you
analyze medical records?

As you organize the medical records, you should be checking
the records received against the chronology of the client’s claim. The
medical records should follow along in a chronology and thus you can
determine if there are missing documents. You must have the complete set
of records for all possible aspects of your client’s claim.

For example, if your case involves a
surgeon who allegedly left behind a trocar and sponges in a patient’s
abdomen, you must be certain you have a full set of X-rays and the
radiology written reports for your client.

Review the chart and identify the
physician’s progress notes and consultant’s notes. In a hospital record,
the primary physician should be documenting patients on a daily basis.
If you discover an absence of daily notes, then you might question
whether or not the patient was evaluated daily. Were there dictated
notes not included within your set of medical records? Is there a copy
of this dictation within the chart?

If you find you are missing records, you
might need to contact the consultant who participated in the patient
care. At times these consultants keep their own set of medical records
related to a particular patient.

Keep in mind, there are many ways to
analyze and review records — there is no one correct way. It might be
helpful to prepare a worksheet charting the events of each day. The
worksheet might have columns designating dates, providers and treatment
rendered. This is a good way to find discrepancies within the records.
For example, the intern, primary physician and nurses might have
conflicting information in their progress notes. Or the physician might
have noted there were no intraoperative complications, while the
anesthesia records indicate the patient had a hypotensive event
necessitating the need for vasopressor medications.

The complete and accurate analysis of
medical records is a key component in the success or failure of the
case. Some cases will require extensive review of complex medical
information. If you find the medical information is too overwhelming,
you might decide to obtain the assistance of a medically trained
professional or legal nurse consultant (see
“Legal Nurse Consulting”
September/October 2003 LAT) to assist in helping you and your team
understand the medical information.

How do you
organize and report the information?

After the information is collected and organized, writing the
report is the next challenge. Determine who will be reading the report
and which format will enhance the reader’s comprehension of the facts
and ideas being presented. The decision might be to use a detailed
chronology or a short memo. The material might require a more formal
report or perhaps a chart analysis.

Whatever the decision, it’s the
responsibility of the writer to be clear, concise and accurate.

What do you
watch for when reviewing medical records?

The reviewer’s responsibility when reviewing medical records
is to look for evidence to support or deny the elements of negligence.
The four elements of negligence are:

A medical duty must exist

There must be a breach of this duty or
standard of care

A proximate cause must be evident
between the breach of duty and the damages incurred by the patient

Damages or injury must be suffered by
the plaintiff.

The medical records must be analyzed by
a knowledgeable healthcare practitioner to determine if the standard of
care was followed. Information deliberately might be not recorded,
making it more difficult to establish what occurred. An expert witness
with an appropriate level of training and experience might be needed to
assist in the analysis of the case.

Experts can be found through many
sources: word of mouth referrals from other law firms, professional
publications such as journals or texts, jury verdict publications, Web
sites such as the American Board of Medical Specialists (www.abms.org)
and referral services. When looking for a medical expert, keep these key
points in mind:

A case involving a physician defendant
should be reviewed by a physician with similar background and
training.

Increasingly, physicians are not being
allowed to testify about the nursing standard of care because
nursing is being recognized as a specialty separate from medicine.

Some states have regulations restricting
the ability to involve specific categories of expert witnesses. For
example, a state might specify the individual must have been in
active clinical practice within a certain number of years of the
incident, or not spend more than a certain percentage of time doing
expert witness work.

What resources
are available to help you through the records analysis process?

The American Association of Legal Nurse Consultants has many
resources available to help you evaluate options for choosing a method
of medical record organization and reporting. AALNC’s “Legal Nurse
Consulting Principles and Practice” and “Essentials of Medical Records
Analysis” are two of the possible resources you might consider. AALNC
has several resources to assist legal assistants in understanding
medical issues. In particular, “Legal Nurse Consulting Principles and
Practice” is the core curriculum for the specialty area of nursing. This
comprehensive text has chapters on analyzing medical records, locating
expert witnesses, and several other aspects of litigation.

In addition, excellent examples of
written reports can be found in AALNC’s “Growing your Practice:
Resources and Tools for the Legal Nurse Consultant” and “Sample Reports
For Legal Nurse Consultants.” The Web site (www.aalnc.org)
also features an LNC Locator to help find nursing experts, as well as
other information to help you with medical records.

Working your way through the tasks of
obtaining and reviewing medical records can be daunting. The clues to
many personal injury, medical malpractice, products liability or
criminal cases can be found buried in the medical records. A systematic
method of handling medical records will make this important aspect of
your job easier.